Peguis First Nation v. Canada (Attorney General)

Peguis First Nation v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2021-09-24
Neutral citation
2021 FC 990
File numbers
T-1141-19, T-1147-19, T-1150-19, T-1442-19
Notes
Digest
Decision Content
Date: 20210924
Dockets: T-1147-19
T-1141-19
T-1150-19
T-1442-19
Citation: 2021 FC 990
Ottawa, Ontario, September 24, 2021
PRESENT: The Honourable Madam Justice McVeigh
Docket: T-1147-19
BETWEEN:
PEGUIS FIRST NATION
Applicant
and
THE ATTORNEY GENERAL OF CANADA AND MANITOBA HYDRO
Respondents
and
CANADIAN ENERGY REGULATOR
Intervener
Docket: T-1141-19
AND BETWEEN:
ROSEAU RIVER ANISHINABE FIRST NATION
Applicant
and
THE ATTORNEY GENERAL OF CANADA, CANADIAN ENERGY REGULATOR, AND MANITOBA HYDRO
Respondents
Docket: T-1150-19
AND BETWEEN:
LONG PLAIN FIRST NATION
Applicant
and
THE ATTORNEY GENERAL OF CANADA, CANADIAN ENERGY REGULATOR, AND MANITOBA HYDRO
Respondents
Docket: T-1442-19
AND BETWEEN:
CHIEF JIM MAJOR ON HIS OWN BEHALF AND ON BEHALF OF ANIMAKEE WA ZHING #37 FIRST NATION
Applicant
and
THE ATTORNEY GENERAL OF CANADA, CANADIAN ENERGY REGULATOR, AND MANITOBA HYDRO
Respondents
JUDGMENT AND REASONS
Table of contents
I. Introduction 4
II. Background 5
A. The Project 5
B. Project Approval Process and Consultation 6
(1) Phase 1 - the Provincial Approval Process and Consultation 7
(2) Phase 2 - NEB Hearing 8
(3) Phase 3 - Supplemental Consultation 10
C. Consultation with Peguis First Nation (T-1147-19) 12
D. Consultation with Animakee Wa Zhing (T-1142-19) 17
E. Consultation with Roseau River First Nation (T-1141-19) and Long Plain First Nation (T-1150-19) 20
III. Decision under review 24
IV. Issues 25
A. Preliminary Issues 25
B. Issues 25
V. Standard of Review 26
VI. Analysis 27
A. Preliminary Issue – Admissibility of Affidavit Evidence 27
(1) Hydro and Canada’s Submissions 27
(2) Analysis 28
B. General Legal Principles regarding the duty to consult 32
C. Issue 1: In T-1141-19 (AWZ), T-1141-19 (Roseau River), T-1150-19 (Long Plain), did Canada properly assess the scope of its duty to consult and accommodate the First Nations? 38
(1) AWZ’s submissions 38
i. Moose 39
ii. Use and Enjoyment of the Land (LOTW Water levels) 39
(2) Roseau River’s and Long Plain’s submissions 40
(3) Analysis – AWZ, Long Plain, and Roseau River 41
D. Issue 2 - Constitutional law: Was it reasonable for the GIC to conclude that Canada’s consultation with Peguis, AWZ, Roseau River, and Long Plain was adequate? 44
(1) T-1147-19 – Peguis 44
i. Peguis’ Submissions 44
ii. Canada’s position 45
iii. Analysis 46
(2) T-1442-19 – AWZ 51
i. AWZ’s Submissions 51
ii. AWZ-Analysis 53
a) Moose 53
b) Water Levels on LOTW 58
c) Economic Accommodation 61
(3) T-1141-19 Long Plain and T-1150-19 Roseau River 63
i. Long Plain’s and Roseau River’s Submissions 63
ii. Analysis 66
a) Consultation Too Late 66
b) TLE 68
c) The GIC’s reasons 71
d) Accommodation 71
E. Issue 3 – Administrative law: Was the GIC’s decision reasonable? 74
(1) Peguis’ Submissions 74
(2) Long Plain’s and Roseau River’s Submissions 76
(3) Analysis 77
F. Summary 82
VII. Remedy 82
(1) Quash the Decision 84
(2) No Remedy 84
(3) Order Further Consultation 85
(4) Declaration 86
VIII. Costs 89
I.
Introduction
[1] This is an application for judicial review of Order in Council [OIC] PC Number 2019 – 0784 issued by the Governor in Council [GIC] on June 13, 2019. The OIC directed the National Energy Board [NEB] to issue a Certificate of Public Necessity and Convenience [Certificate] for the Manitoba-Minnesota Pipeline Project [MMTP or the Project]. The Project has now been built and in operation since approximately July 2020.
[2] The Applicants are Peguis First Nation [Peguis] (T-1147-19), Animakee Wa Zhing #37 [AWZ] (T-1442-19), Long Plain First Nation [Long Plain] (T-1150-19), and Roseau River First Nation [Roseau River] (T-1141-19). The Applicants are all “Bands” within the meaning of the Indian Act, RSC 1985 c. I-5, and their members Aboriginal peoples pursuant to s. 35(1) of the Constitution Act, 1985. Peguis, Roseau River, and Long Plain are signatories to Treaty 1. AWZ is signatory to Treaty 3. The Applicants are each challenging the adequacy of Canada’s consultation for the Project and the reasonableness of the GIC’s decision.
[3] The Respondents are the Attorney General of Canada [Canada] and Manitoba Hydro [Hydro], the Project’s proponent [proponent]. The Canada Energy Regulator [CER] is intervening in this application. The CER is the successor to the NEB, and appears in order to assist the Court as to the role of the NEB in the consultation process, but takes no position on the merits of the judicial review applications.
[4] Each of these applications are separate but were heard together. Given that they all relate to the same project, I am writing a consolidated decision.
II. Background
A. The Project
[5] The MMTP is an international transmission line operated by Hydro. It runs from Winnipeg to the Manitoba/Minnesota border, crossing Treaty 1 territory. The purpose of the MMTP is to deliver energy to Manitoba and surplus energy to Minnesota. The MMTP is 213 kilometers long, with 92 of those kilometers running on existing rights of way while 92 kilometers is on new right of way. Of those 92 kilometers, 85 are on privately held land and 36 kilometers are on provincial Crown land. Construction on the Project began in September 2019, and was completed in July 2020. The MMTP is currently in service and operating.
B. Project Approval Process and Consultation
[6] To proceed, the Project needed to be approved by both Manitoba and Canada. Hydro was required to get a provincial licence pursuant to Manitoba’s The Environment Act, CCSM c E125 [Environment Act] and federal approval under both the National Energy Board Act, RSC 1985, c N-7 [NEB Act] and the Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52[CEAA].
[7] The federal and provincial processes were coordinated. In 2013, Hydro began its environmental assessment process, including its First Nation Engagement Process [FNMEP], and in 2015 it completed its Environmental Impact Statement [EIS]. Hydro engaged with a large number of affected and possibly affected First Nations during its environmental assessment process in order to collect and listen to First Nations input and feedback.
[8] From Canada’s perspective, consultation took place in three phases, following a similar process to other energy project approvals. Canada identifies the first phase as the provincial approval process, including the Clean Energy Commission [CEC] hearings and Manitoba’s separate Crown consultation. The second phase was the NEB hearing and the third phase was Canada’s supplementary consultation.
(1) Phase 1 - the Provincial Approval Process and Consultation
[9] Manitoba’s approval process consisted of three parts: an environmental assessment, CEC hearings, and Provincial Crown-Indigenous consultation.
[10] Hydro submitted the EIS to Manitoba on September 22, 2015. On October 3, 2016, Manitoba wrote to the CEC advising that it had completed the environmental assessment process and that any concerns with the Project could be addressed using licensing conditions.
[11] On December 31, 2015, Manitoba wrote to the CEC asking it to hold hearings on the Project and providing terms of reference for the public review hearings. The terms of reference (revised on February 15, 2017) required the CEC to consider the Project-related impacts to Indigenous groups, per section 5 of the CEAA but noted that Manitoba would conduct consultation separately from the CEC process. The CEC process consisted of pre-hearing meetings, workshops, information requests, and 18 days of hearings. The CEC submitted its final report on September 12, 2017, recommending that the Project be approved subject to 17 licensing conditions.
[12] Manitoba conducted consultations with a number of Indigenous groups separately from the CEC process. The details of that consultation process are not on the record and the adequacy of Manitoba’s consultation is not an issue on this judicial review.
[13] Manitoba granted an Environmental Act licence, with 64 conditions, on April 4, 2019.
(2) Phase 2 - NEB Hearing
[14] Pursuant to sections 45(1) and 58.11 of the NEB Act, Hydro filed a permit application with the NEB on December 16, 2016.
[15] On June 13, 2017, the NEB sent letters to 25 Indigenous communities and organizations that the NEB identified as being potentially affected by the Project. The letters advised the Indigenous groups about the permit process and invited them to participate in the process, noting that participant funding is available.
[16] On October 31, 2017, the NEB recommended to the GIC that the NEB proceed through the certificate process set out in section 58.16 of the NEB Act, instead of the permit process in section 58.11 of the NEB Act. The NEB reasons indicate that it made this recommendation for two reasons. First, because the CEC concluded that it did not need to assess whether the Project’s effects might impact the exercise of Aboriginal or Treaty rights. Second, because of the Supreme Court of Canada’s [SCC] two decisions in Clyde River (Hamlet) v Petroleum Geo‑Services Inc, 2017 SCC 40 [Clyde River] and Chippewas of the Thames First Nation v Enbridge Pipelines Inc, 2017 SCC 41 [Chippewas], which provided guidance on the NEB’s duties in Indigenous consultation.
[17] On December 15, 2017, the GIC accepted the NEB’s recommendation, ordering the NEB to proceed via the certificate process.
[18] On December 21, 2017, the NEB released Hearing Order EH-001-2017 [Hearing Order]. The Hearing Order contained the list of issues to be addressed through the NEB hearing. It also incorporated the record of the CEC hearings and the CEC Reasons into the NEB record. The Hearing Order stated that all parties that applied to participate in the permit process were granted pre-decided standing for the Hearing. The Hearing Order also noted that interested parties could apply to participate in the Hearing.
[19] On February 14, 2018, the NEB released Ruling No. 4 [the Ruling]. This Ruling specified:
the NEB’s role in satisfying the duty to consult;
clarified the scope of issues to be considered by the NEB; and
listed the successful applications to participate.
The Ruling states that the eight parties who registered to participate in the permit process were granted pre-decided standing. Further, that NEB accepted all twelve applications to participate as an Intervener.
[20] On March 20, 2018, the Minister of Natural Resources advised the NEB that Canada would be relying on the NEB process to fulfill Canada’s duty to consult. Canada’s intent to rely on the NEB process was communicated to the Applicants in April and May of 2018.
[21] Throughout the spring of 2018, parties exchanged information requests. The NEB also sought the Interveners’ comments on the CEC Reasons, draft conditions and potential mitigation measures. Some of the participants (including some of the Applicants in these applications) sought to compel answers to information requests of Hydro, and when that motion was denied by the NEB, sought a variance of the NEB decision.
[22] The NEB Hearing took place in June 2018. Some of the Indigenous interveners gave oral traditional evidence in person from June 4 to 8, 2018. Later in the month, from June 18 to 22, 2018 oral submissions, cross-examination of Hydro’s representations, and final argument took place.
[23] The NEB Reasons for Decision [NEB Reasons] were released on November 15, 2018. The NEB concluded that the Project is and will be required for the present and future public convenience and necessity. The NEB recommended that the GIC issue a Certificate, subject to 28 conditions.
(3) Phase 3 - Supplemental Consultation
[24] By letter dated August 14, 2018, Canada notified potentially effected Indigenous groups that it would conduct supplemental consultations. The purpose of the supplementary consultation was to identify any outstanding concerns regarding Project-related impacts to Aboriginal and Treaty rights that were not communicated to the NEB or not addressed by the NEB, and to discuss incremental accommodation measures if appropriate. The letter initiating supplemental consultation offered First Nations participant funding (between $5,000-$9,000) to those groups who wished to participate in supplemental consultation.
[25] A number of attachments were included with the August 14, 2018 letter that went to all of the First Nations. Included was the Project Agreement for the MMTP, which guided the coordination of consultation as between various federal agencies. Also attached was a document titled “Summary of Information Available and Preliminary Depth of Consultation Assessment” [DCA] for each First Nation. This document summarized the Aboriginal and Treaty rights, potential project impacts on those rights, and Canada’s preliminary assessment of the depth of consultation owed to each First Nation. Finally, an application for participant funding for supplemental consultation and a funding eligibility criteria document was provided.
[26] Canada’s evidence is that supplemental consultation took place with twelve Indigenous groups between August 2018 and June 2019. Pursuant to section 58.16(10) of the NEB Act, the GIC must decide whether to approve or not to approve the NEB’s recommendation and to issue a Certificate within three months of the release of the NEB’s Reasons. In this case, the NEB released its Reasons on November 15, 2018 and the original GIC’s deadline for decision was February 15, 2019. However, that deadline was extended twice through OIC, first to May 16, 2019 and then to June 14, 2019.
[27] On March 22, 2019, Canada sent a draft annex of the Crown Consultation and Accommodation Report [CCAR] specific to each First Nation for their review and comment. The covering letter to the draft CCAR invited the First Nations to provide written submissions directly addressing any outstanding concerns, issues or other views regarding the Project. The Indigenous groups were given until April 23, 2019 to provide feedback.
[28] On May 16, 2019, Canada sent a letter to the Indigenous groups they were consulting with indicating that Canada was prepared to propose amendments to the NEB Conditions after receiving the Indigenous groups’ feedback. Additionally, the letter stated that Canada intended to share the text of the draft conditions. Finally, as a response to concerns identified, Canada indicated that it was proposing a Terrestrial and Cultural Studies Initiative [TCSI] to fund Indigenous-led studies.
[29] On June 3, 2019, Canada again wrote to the Indigenous groups they were consulting with indicating that consultation had ended. Canada attached a copy of the final CCAR and the First Nation-specific annex as well as the proposed amendments to the NEB’s conditions.
[30] On June 13, 2019, the GIC issued the OIC, directing the NEB to issue a Certificate, subject to amendments to the NEB conditions. On June 14, 2019 Canada advised the Applicants of the GIC’s decision.
[31] I will now summarize the details of consultation with each of the Applicant First Nations.
C. Consultation with Peguis First Nation (T-1147-19)
[32] Peguis first became involved in the Project in 2013 as part of Hydro’s FNMEP. As part of Hydro’s engagement, Peguis produced an Aboriginal Traditional Knowledge Study [ATKS]. Peguis also participated in Hydro’s MMTP Monitoring Committee [MMTPMC]. The MMTPMC is composed of representatives from impacted First Nations and Hydro that meets regularly in order to provide updates and share feedback about the Project.
[33] Peguis participated in the CEC hearings and was granted Intervener status for the NEB proceedings. As an Intervener, Peguis submitted and responded to information requests, cross-examined Hydro’s panel of witnesses, commented on the NEB’s draft conditions, and provided oral traditional evidence and written submissions.
[34] Canada wrote to Peguis on August 14, 2018, inviting them to participate in supplemental consultation. In its preliminary DCA, Canada indicated that it owed Peguis a moderate level of consultation. Canada offered Peguis $9,000 in participant funding.
[35] The DCA was done unilaterally by Canada, but Canada’s evidence is that it was a preliminary assessment and could change during the consultation process.
[36] Peguis responded to Canada’s August 14, 2018 letter, submitting a participant funding application on September 12, 2018 for approximately $77,000. This included an application for funding an archeological study that it felt was necessary. Canada did not approve the application and between September and November 2018, representatives from Canada and Peguis discussed funding through email and meetings. On November 14, 2018, Peguis resubmitted its funding application, which had been put on hold because of the amount requested. On December 12, 2018, the parties participated in a teleconference where they discussed the activities eligible for participant funding. On December 19, 2018, Canada wrote to Peguis that it had increased the available funding from the initial offering of $9,000 to $27,000 and invited Peguis to submit a funding application form for that amount. On February 8, 2019, Peguis submitted a participant funding application for $28,000 which was $1,000 more than the offering.
[37] On February 19, 2019, the parties participated in a teleconference where they discussed activities eligible for participant funding, particularly funding for an archeological study. The conclusion in the minutes from the meeting show that Canada’s representative, Sebastian Labelle, indicated that “what Peguis was proposing in its revised application for participant funding sounded relatively reasonable.” However, “he clarified that further due diligence was required prior to making a decision,” and “added that he would discuss the proposal with Assistant Deputy Minister Labonté and would respond to Peguis shortly thereafter.”
[38] Canada followed up the February 19, 2019 meeting by letter dated March 8, 2019. Canada responded to the study request by indicating that it would not fund studies that have already been undertaken by the proponent or Indigenous groups. Canada’s understanding was that the proposed archeological study had already been conducted, at least in part, through the ATKS Peguis developed as part of its engagement with Hydro. Canada reiterated its offer of $27,000 for eligible activities.
[39] On March 5, 2019, Peguis inquired with Canada whether it would have to resubmit its funding application, and on March 13, 2019, Canada confirmed that they would. On March 22, 2019, Peguis resubmitted the funding application for $27,010.72.
[40] On the same day, March 22, 2019, Canada sent the draft Peguis-specific annex of the CCAR to Peguis for review. In their letter, Canada noted that if Peguis provided comments by April 8, 2019, Canada could incorporate them and provide Peguis with the updated CCAR for review. The letter indicated that the deadline for providing comments is April 23, 2019. The letter also expressed that Canada’s representatives were available to meet and that Peguis could provide independent written submissions.
[41] On April 10, 2019, a representative from Canada emailed Peguis inquiring about whether they intended to schedule community meetings. Peguis responded the same day, noting that they could not schedule meetings until the funding application had been approved. At the hearing, Peguis indicated that this position was based on the funding application, which stated that “[i]f you are successful in receiving funding, you cannot request payment for any work done before you sign a Contribution Agreement with us and only work done after you sign an agreement with us is eligible for payment” (emphasis added).
[42] On April 12, 2019, Canada wrote to Peguis that their funding application had been approved but for a slightly lesser amount of $26,960.72. The approval indicated that the next step was to sign a contribution agreement. The funding agreement was signed by all parties by April 29, 2019.
[43] On April 13 and 26, 2019, representatives from Canada followed up with Peguis about scheduling community meetings. The April 26, 2019 communication noted that given that the legislated deadline for the GIC’s decision was May 16, 2019, meetings would have to occur by May 3, 2019. Peguis understood they now had one week (until May 3, 2019) to hold the meetings. Their evidence is that one week was too short of a turnaround to do this given their reserve composition.
[44] No community meetings were scheduled. The next communication between the parties on the record is a May 17, 2019 letter from Canada. This letter states that the GIC’s decision had been extended until June 14, 2019, that Canada was considering amending the NEB’s conditions, and that Canada would be developing a TCSI. On June 3, 2019, Canada wrote to a very surprised Peguis indicating that consultation had ended, and that Canada would be amending some of the NEB’s conditions. With that correspondence, Canada attached a final copy of the CCAR and the Peguis-specific annex.
[45] On June 5, 2019, Mr. Sutherland on behalf of Peguis wrote to Canada noting that a decision should not be made when the consultation with Peguis has not yet occurred. Peguis noted that they would be writing to request an extension for the decision. The extension request letter, dated June 6, 2019, was sent to Canada on July 11, 2019, almost a month after the GIC decision was made on June 13, 2019. No further response was received by Peguis in relation to their request for an extension.
[46] On September 6, 2019, Canada responded to Peguis’ letter, inviting them to submit any expenses for reimbursement and apply for funding through the TCSI.
D. Consultation with Animakee Wa Zhing (T-1142-19)
[47] AWZ’s traditional territory is located in Manitoba, Minnesota and Ontario. AWZ has used its territory to harvest wild rice, trap, hunt, and gather medicines. AWZ is a signatory to Treaty 3 and has over 400 registered members and 11 reserves in Ontario and southeastern Manitoba.
[48] Members of AWZ primarily reside at Windigo Island on Lake of the Woods [LOTW] and Regina Bay. Water levels on LOTW have historically fluctuated based on human development, and the resultant flooding has negatively impacted AWZ’s reserve land and their ability to harvest wild rice. LOTW water levels are controlled by the Lake of the Woods Control Board [LOTWCB].
[49] Hydro did not identify AWZ as a potentially affected Indigenous group and therefore did not include AWZ in its FNMEP from 2013 to 2016. While AWZ asserts that they were first informed of the Project in 2017, Canada notes that AWZ received a letter from Manitoba about the Project in January 2016. Regardless, the NEB identified AWZ as a potentially affected group and directed Hydro to engage with AWZ. AWZ’s active involvement began in June of 2017 after receiving letters from both the NEB and Hydro.
[50] AWZ met with Hydro representatives and participated in Hydro’s MMTPMC. Hydro also provided funding to AWZ (together with another First Nation) to conduct a traditional knowledge study. AWZ received a draft copy of that study in April of 2018. While there were discussions about conducting further study, no further study was conducted.
[51] AWZ was granted Intervener status for the NEB hearings. As an Intervener, AWZ made information requests of Hydro, brought motions to compel responses from Hydro and to review NEB rulings, filed affidavits, cross-examined Hydro’s panel of witnesses, commented on the NEB’s draft conditions and providing oral evidence and written submissions.
[52] Canada wrote to AWZ on August 14, 2018, inviting them to participate in supplemental consultation. In the letter, Canada included a DCA, which concluded that it owed AWZ a moderate level of consultation. Canada also offered AWZ $9,000 in participant funding.
[53] Officials from the MPMO met with AWZ on January 24, 2019. At that meeting, they discussed AWZ’s outstanding concerns and potential accommodation measures. AWZ raised concerns about the Project’s impact on moose and the possibility of developing a Moose and Moose Habitat Management Plan [MMHMP]. They also discussed concerns about the Project’s impact on LOTW and funding for an advisor to attend and advocate at LOTW Control Board [LOTWCB] meetings. Additionally, there was discussion about the Project’s impact on plants, the psycho-social impact of electromagnetic fields [EMF] and economic accommodation.
[54] On February 11, 2019, MPMO invited AWZ to a February 21, 2019 meeting with the LOTWCB already scheduled with another First Nation, and MPMO sent an agenda of the meeting on February 20, 2019. AWZ did not attend the meeting because of the short notice and lack of funding for travel.
[55] On April 12, 2019, Canada offered AWZ an additional $14,500 in participant funding. Around this time, AWZ held elections, and the transition in governance interrupted their ability to engage with Canada.
[56] On March 22, 2019, Canada sent AWZ a draft of the CCAR and an AWZ-specific annex and requested feedback and written submissions. AWZ responded on May 3, 2019, requesting further engagement with Canada, and on May 17, 2019, expressing concerns with the consultation process and outlining their outstanding concerns.
[57] On May 9, 2019, AWZ and MPMO met again. They discussed water levels on LOTW, protecting moose habitat, capacity funding for AWZ to engage with Hydro, and economic accommodation.
[58] On June 3, 2019, Canada wrote to AWZ advising that the consultation had concluded and attaching the final CCAR and AWZ-specific annex and providing a copy of the proposed amendments to the NEB conditions.
[59] On July 24, 2019, after the Project had been approved, Canada wrote to AWZ inquiring about its interest in the TCSI through the program, AWZ applied for and received funding to complete a traditional knowledge study and develop a MMHMP.
E. Consultation with Roseau River First Nation (T-1141-19) and Long Plain First Nation (T-1150-19)
[60] Roseau River is a signatory to Treaty 1 and their traditional territory is located within Manitoba. Roseau River’s reserves are located in southern Manitoba and they have a population of about 2,600 people.
[61] Roseau River has outstanding Treat Land Entitlement [TLE] interests in southern Manitoba. On March 27, 1996, Roseau River signed a TLE Settlement Agreement [TLESA] with Canada.
[62] Long Plain is also a signatory to Treaty 1 and their traditional territory is located within Manitoba. Long Plain has reserves near Portage La Prairie, Manitoba and a population of about 4,400 people.
[63] Similar to Roseau River, Long Plain has outstanding TLE interests in southern Manitoba. On August 3, 1994, Long Plain signed a TLE Settlement Agreement with Canada.
[64] Long Plain was identified by Hydro as a Treaty 1 First Nation potentially affected by the Project. Long Plain participated in the project through Hydro’s FNMEP since 2013. Long Plain, through the Aboriginal Traditional Knowledge Study [ATKS] Management Team – a group of three potentially affected First Nations – produced an ATKS Report in 2015. This report was meant to inform the Project’s route selection and the EIS.
[65] Roseau River was identified by Hydro as a Treaty 1 First Nation potentially affected by the Project. Roseau River participated in Hydro’s FNMEP since 2013. Roseau River produced its own ATK Report.
[66] These two First Nations were represented by the same counsel, who provided mirrored arguments save the specific facts of each First Nation.
[67] In a June 13, 2017 letter, the NEB informed Long Plain about the hearing and invited Long Plain to participate, including noting that participant funding would be available. In an April 29, 2018 letter to Chief Meeches, Long Plain’s Chief, Canada informed Long Plain that it intended to rely on the NEB’s process in order to satisfy its duty to consult. However, citing funding concerns, Long Plain did not participate as an intervener in the NEB process.
[68] Canada submits that Long Plain’s interests were nevertheless represented at the NEB hearings through the EIS, the CEC Record, and through the Southern Chiefs Organization [SCO], an independent political organization representing Treaty 1 and 3 First Nations.
[69] Roseau River applied and was granted Intervener status for the NEB proceeding. As an Intervener, Roseau River made information requests of Hydro, brought motions to compel responses from Hydro and to review NEB ruling refusing that motion, and was provided the NEB’s draft conditions for comment. Canada also submits that Roseau River’s interests were presented through the incorporation of the CEC record, and SCO’s involvement.
[70] In their August 14, 2018 letter inviting Long Plain and Roseau River to participate in supplementary consultation, Canada included a DCA indicating that it owed Roseau River a moderate level of consultation and Long Plain a low level of consultation. Canada offered Long Plain $5,000 in participant funding and Roseau River $9,000.
[71] Long Plain’s and Roseau River’s experience overlap between November 2018 and January 2019 through their participation in the Treaty 1 Technical Team. In November 2018, Long Plain and Roseau River were one of six First Nations who formed the Treaty One Technical Team [TOTT]. During a November 16, 2018 call with the MPMO, these Indigenous groups advised Canada that they were intending to create the TOTT to engage in supplemental consultation. During a November 28, 2018 conference call, the TOTT advised that it intended to incorporate.
[72] Between December 2018 and January 2019, Canada and the TOTT discussed the details of funding and the legalities of consulting with a corporation, Anishinabe Nations Construction Inc. [ANCI]. It was the First Nations’ position that ANCI would play a financial and administrative role, but that each First Nation would be responsible for carrying out its consultation obligations. Canada’s position was that in order for it to provide funding to a corporation for consultation activities, the constituent First Nations had to provide band council resolutions confirming that that they had delegated their duty to consult to the corporation. The First Nations’ response was that they could not legally delegate their constitutional rights and therefore they could not provide the requested band council resolutions. Ultimately, Long Plain and Roseau River submitted independent funding applications in February 2019 and funding amounts were settled in April 2019.
[73] On March 22, 2019, Canada sent a draft of the CCAR and Long Plain-specific annex and Roseau-specific annex to the respective First Nations. Canada requested Long Plain’s and Roseau River’s comments and feedback and invited the First Nations to provide written submissions. Both Long Plain and Roseau River submitted independent submissions, on May 15 and 14, 2019, respectively.
[74] Around the same time, both First Nations initiated communications with Canada regarding TLE selections on land near or overlapping with the Project’s proposed right of way. On April 6, 2019, Long Plain sent a letter to the Minister of Crown-Indigenous Relations [MCIR regarding land identified by Long Plain for TLE. On April 30, 2019, Long Plain sent this same letter to the Minister of Natural Resources Canada. On May 1, 2019, Long Plain again wrote the Minister of Natural Resources Canada and Manitoba to raise Long Plain’s identification of land for TLE purposes.
[75] On May 1, 2019, Roseau River inquired with Indigenous Services Canada [ISC] about the availability of land located along the Project route for TLE purposes. On May 23, 2019, ISC replied to Long Plain’s TLE inquiry and noted that the selected land was not for sale and that TLE acquisitions are made on a willing seller/buyer basis.
[76] On April 18, 2019, MPMO staff met with Roseau River leadership and TLE concerns were discussed. On May 2, 2019, MPMO staff met with Long Plain. At the meetings, the parties discussed funding, TLE, Manitoba’s conduct in approving the Project, and the adequacy of provincial and federal Crown consultation.
[77] On May 2, 2019, MPMO staff also met with Roseau River and two other First Nations, and they discussed the adequacy of consultation with Manitoba and Canada, Canada’s accommodation mandate, TLE, compensation and economic participation.
[78] On May 16, 2019, MPMO wrote to Roseau River indicating that the GIC’s decision had been extended to June 14, 2019 and that Canada was considering amending the NEB’s condition and introducing the TCSI Roseau River responded on May 24, 2019, requesting further dialogue and expressing optimism about the potential accommodation measures.
[79] There was no further communication between Canada and Long Plain or Roseau River until June 3, 2019, when Canada wrote to Long Plain and Roseau River advising that the consultation had concluded and attaching the final CCAR and Long Plain and Roseau River-specific annexes, and providing a copy of the proposed amendments to the NEB conditions.
III. Decision under review
[80] The decision under review is the GIC’s June 13, 2019 OIC, attached as Annex A to these Reasons.
IV. Issues
A. Preliminary Issues
[81] The Respondent Hydro raises as a preliminary issue the admissibility of affidavit evidence and the cross-examinations in this judicial review. Canada also raises concerns about the admissibility of certain portions of the affiant’s evidence as hearsay, opinion, or argument.
B. Issues
[82] These applications raise four substantive issues:
In T-1141-19 (AWZ), T-1141-19 (Roseau River), T-1150-19 (Long Plain), did Canada properly assess the scope of its duty to consult and accommodate the First Nations?
As a matter of constitutional law was it reasonable for the GIC to conclude that Canada’s consultation with Peguis, AWZ, Roseau River, and Long Plain was adequate?
As a matter of administrative law, was the GIC’s decision reasonable?
What is the appropriate remedy?
V. Standard of Review
[83] The parties do not dispute that the standard of review for whether there is a duty to consult, and the depth of consultation, is correctness. The standard of review for whether consultation and the OIC was reasonable is reasonableness (Coldwater First Nation v Canada, 2020 FCA 34 at para 27 [Coldwater]).
[84] The Court in Coldwater also provided guidance on how to conduct reasonableness review in this context. The Court noted:
[28] In conducting this review, it is critical that we refrain from forming our own view about the adequacy of consultation as a basis for upholding or overturning the Governor in Council’s decision. In many ways, that is what the applicants invite us to do. But this would amount to what has now been recognized as disguised correctness review, an impermissible approach…
[29] Rather, our focus must be on the reasonableness of the Governor in Council’s decision, including the outcome reached and the justification for it. The issue is not whether the Governor in Council could have or should have come to a different conclusion or whether the consultation process could have been longer or better. The question to be answered is whether the decision approving the Project and the justification offered are acceptable and defensible in light of the governing legislation, the evidence before the Court and the circumstances that bear upon a reasonableness review.
[85] In that case, the Court, instructed that: the statutory scheme; the law regarding the duty to consult; post-approval consultation; and the importance of the matter to those directly affected, are the factors relevant to determining whether the decision was reasonable.
VI. Analysis
A. Preliminary Issue – Admissibility of Affidavit Evidence
(1) Hydro and Canada’s Submissions
[86] Hydro submits that a judicial review should be decided based upon the record before the decision-maker. In this case, the record is the material before the NEB and the GIC, including the CEC record. This record includes the EIS, traditional knowledge studies, transcripts from the CEC hearings, the exhibits filed at both the NEB and the CEC hearings, the Information Requests that the NEB and the NEB participants made of Hydro and Hydro’s responses, and documents generated during supplemental consultation.
[87] Hydro submits that the Record is found in the Affidavit of Sebastian Labelle (Canada’s affiant) affirmed January 7, 2020 [Labelle Affidavit]. Hydro states that to the extent that the Applicants point to their own affidavits without an established basis in the Record, the evidence should be rejected.
[88] Hydro’s position is that the cross-examinations should be inadmissible because they do not have a basis in the Record, and their use is limited to clarifying what was in or out of the Record. Hydro stated in their Memorandum of Fact and Law at paragraph 27:
In addition, the cross-examinations too are inadmissible without a clear foundation in the Record. But more so, the cross-examinations should be for clarifying what was in or out of the Record. It is not the time to test people’s views on consultation. It is not the time to get more facts about certain events on the Record. According to Hydro, the purpose of cross-examinations is not to test people’s views on consultation.
[89] Canada objects because portions of the Applicants’ affidavits include content that is hearsay, opinion, and argument and therefore offend Rule 81 of the Federal Courts Rules, SOR-98/106 [Federal Courts Rules]. Rule 81 provides that affidavits are confined to facts within the deponent’s knowledge. Canada submits that this content is inadmissible and cannot be considered.
(2) Analysis
[90] I agree with Hydro that the evidence on judicial review is the information that was before the decision-maker (Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 [Association of Universities] at para 19). Evidence not before the decision-maker which goes to the merits of the decision is not admissible on judicial review. Typically, the “record before a decision maker” is provided in the form of the Certified Tribunal Record [CTR], from the tribunal whose decision is under review. In this case, Canada claimed cabinet confidence over the material before the GIC, and no party has challenged that claim. Therefore, all the evidence is provided through the affiants, in particular through the Labelle Affidavit, but also through the Applicants’ affiants. In my view, there is no basis for Hydro’s submission that the Labelle Affidavit constitutes “the record” while the information provided in the Applicants’ affidavits does not. That statement is not without a caveat.
[91] As Justice Stratas stated in Association of Universities at paragraph 20, there are recognized exceptions to the rule that the only admissible evidence is the record before the decision-maker. First, the Court can receive affidavit evidence that provides background on issues relevant to the judicial review. Second, affidavits may be necessary to demonstrate procedural defects that cannot be found in the record before the decision-maker. Third, sometimes affidavit evidence is necessary in order to highlight the absence of evidence on particular point before the decision-maker.
[92] While Hydro submits that the Applicants provide evidence that is not in the Record, they do not point to any specifics. Absent these specifics, in my judgment the Court should not ignore or disregard the affiants’ evidence. As the Federal Court Appeal [FCA] stated in Tsleil-Waututh Nation v Canada (Attorney General), 2017 FCA 128 at paragraph 13, “a fuller and more accurate record will promote the proper de